Hamet v. Dundass

Rogers, J. Whether there is evidence to justify the verdict is not for us to determine, but that there was some testimony proper for the consideration of the jury on each of the points on which the cause turned, no reasonable doubt can be entertained. The case seems to have'been heard and examined with great care, and after a full hearing and investigation on the merits, both by the court and jury, it would be perilous in us, with the lights before us, to undertake to reverse the judgment on an allegation that the cause 'had been submitted to the jury without the shadow of.proof. Such a case may, but seldom arises. In the case in hand, it would have been palpable error to withdraw it from the constitutional tribunal appointed to determine it, for without analyzing the testimony, which the case does not demand, I may be permitted to .observe, that if it [181] be as the defendant represents, he has, unfortunately for himself, been placed in a position where appearances are very much against him. The plaintiff in error complains of the charge in several particulars. As in that part of the charge where they say, that Averill was at the time of the alleged conveyance in failing circumstances, and -known to Hamet to be so. This is an assertion, as he contends, without any evidence to support it. But we are of opinion there is evidence that Hamet knew of the insolvency of Averill, and further, even admitting the expressions of the judge went beyond the mark, the remedy is elsewhere. Again, he says, there is error in charging the jury, that, if they believe the judgment, No. 75, July Term, 1841, Hamet v. Averill, for $20,00, was given for the same money, (with the addition of interest,) that forms the consideration of the deed, and that that judgment was taken, as an additional security for the same, it is strong evidence that the deed was in fact but a mortgage. In this direction we concur; for giving the conduct' of the defendant the most favourable construction, it was holding out false appearances to the world, which is one of the badges of fraud, and is an index, that it was not intended for an absolute deed, but a deed in the nature of a mortgage, an additional security for the money due on the judgment. Unexplained, it would be powerful, if not conclusive evidence on that point. It was open to explanation, as the court instructed the jury, for they refused to charge it was conclusive evidence, but contented themselves (they could not do less) with saying, it was strong evidence, it was but a mortgage. But, admitting that the court was wrong, it was but the expression of.opinion on the weight of evidence, an error which we cannot correct. If, on the trial of an issue, the court erroneously say, that evidence is prima facie or conclusive, writ of error lies, for there is something tangible in it. Those are terms definite in themselves, well known and understood, and easily applied, but when expressions are used, such as that it is strong, has weight, little weight, grefit weight, or no weight, that it is powerful evidence, and words of similar'import; it is but an opinion on different degrees of testimony, and if wrong, must be corrected by the court themselves, on a motion for a new trial. If this court should attempt to disturb a verdict for this and similar reasons, wTe should do much more.mischief than good. It would’trammel the court for no useful purpose. The -second error has not been much pressed, for-, undoubtedly, greát inadequacy of price is an ingredient entitled to some weight [182] when the question is fraud, or that the instrument purporting to be an absolute deed is but a security for money. The defendant insists there is error in the third and fourth bills. They depend on the same principle. It is undoubtedly competent, when fraud or collusion to withdraw an estate from the grasp of a creditor is alleged, to prove that at the time of sale the vendor was largely indebted. And this was the object of the testimony. It is nothing to the purpose that Averill was an endorser, not fixed for the money, for there is a responsibility arising from his position of endorser, an eventual liability from which he cannot escape by a fraudulent sale. It is within the mischief of the statute of frauds. It may be, and if true, it would have availed the defendant, that he was ignorant of the indebtedness, but a plaintiff cannot prove his whole case at a breath, and in this case subsequent evidence was given, sufficient to satisfy the jury on this essential .point. But the court, says the defendant, erred in rejecting a letter written by Guy C. Irvine to Clarke McSparren, cashier of the Erie bank, which in substance directs the money which had been deposited by him in bank should not be applied to a judgment of Butler, Lowry et al. v. Averill, unless the plaintiff assigned the judgment to him. In what respect this evidence was material the plaintiff has failed to show. It is not said that Hamet knew of the letter, that he became alarmed in consequence of it, and acted on it, even admitting there was any thing in it, which I am unable to discover, calculated to produce that effect. The amount of it was, to substitute one creditor for another, altering in no respect their rights depending on the judgment. It would be useless for us to speculate as to the different characters of Irvine and Lowry, if there be any difference between them. It would be folly to suppose, that the latter would abandon any of his rights, and this is all Irvine could obtain, had he been substituted as assignee. As this case has been most earnestly pressed, I have examined it with some care, but have been unable to discover any just reason to complain. If the defendant has suffered injustice, it is at the hands of the jury and not the court. Judgment affirmed.